Controversy re: the PATRIOT Act

The PATRIOT Act provided a legal framework for counter-terror methods. Banks states that “As framed by legal interpretation, the PATRIOT Act encapsulates the notion of protecting order through law” (2010, p.7). The PATRIOT Act amends several previously existing laws of the United States as well as establishing new law in several areas. However, a concise summary is hard to provide, as “the Patriot Act is very detailed and sometimes difficult to assess” (The Heritage Foundation, 2004, p.7). Keeping this assertion in mind, the Heritage Foundation also contends that the base purpose of the act is removing barriers to intelligence gathering and collation; “the Patriot Act changes adopt as a general principle the rule that any information lawfully gathered during a foreign or domestic counterintelligence investigation or lawfully gathered during a domestic law enforcement investigation should be capable of being shared with other federal agencies” (2004, p.30). However, the PATRIOT Act may not be as effective a tool as it was intended. “According to a recent federal court decision, however, the Patriot Act did not raze the wall; to the contrary, the Act raised, for the first time, a statutory basis for the wall”(Seamon & Gardner, 2005, p. 322). Sales argues that there still intelligence sharing areas in which “walls” still prevent information sharing (2010, p. 1796).

Banks asserts that the Act increased the authority of law enforcement by “expanding statutory definitions of domestic terrorism and increasing punishments for such activities, the law centralizes executive authority by allowing the unfettered capture and prolonged detention of a wider class of citizens or immigrants who have not engaged in terrorist acts (2010. p.8). Sales lists three additional examples of how the PATRIOT Act changed law; by allowing roving wiretaps, by allowing counter- terror operatives to examine business records, and by allowing the monitoring of lone wolves, “even if they haven’t yet found evidence he belongs to a foreign terrorist organization” (2014, para. 3,5,7)

The Heritage Foundation lists fifty terrorist plots that have been prevented since 9/11. In the case of the Lackawanna Six, the Heritage Foundation found that “the PATRIOT Act’ information-sharing provisions were essential”(Carafano, Bucci, & Zuckerman, 2012, p.19). Sales illustrates how Zacarias Moussaoui could have been identified had the PATRIOT Act been in force prior to 9/11 (2014, para.7).

The Act has been a subject of controversy from the beginning. Clarke explains that the ACLU has led the opposition to the Act and that their “ objections center on surveillance of anyone generally, but American citizens specifically. The First Amendment’s free speech and assembly, and the Fourth

Amendment’s protection against unreasonable searches and seizures without a warrant,

are several of the constitutional protection items” of concern (2013, p.36). Breinholt argues against this position, “People who are alarmed by such things as the PATRIOT Act should acknowledge that American courts, which operate on the basis of historical precedent, remain available and are willing, when necessary, to redraw the lines between collective security and personal liberty” ( 2004, p.141).

And while the PATRIOT Act is effective, it has been the underlying cause of the most widespread civil liberty violations in American history, the shotgun approach in which the NSA has spied upon the populace at large. A report issued by the Center for Democracy and Technology concludes that some surveillance conducted by the FBI and the NSA has been illegal and such “surveillance is not permitted

by the statute, and was hidden from the public by deception” (2013, p.6). This violation of civil liberty has been so extreme that Jim Sensenbrenner,the author of the PATRIOT Act , had this to say about it, “I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security” (Kravets, 2013, para. 3).

Sensenbrenner has the correct sense of the matter when he says that these security provisions must be targeted at specific terrorists. Clarke quotes an Arkansas fusion center director ho said that “they spy

not on Americans, just on anti-government Americans” (2103, p. 32). Perhaps the director would also be correct if he changed “anti-government” to “anti-American”. The concept of protecting America goes beyond the concept of protecting it's government.

Banks, C. P. (2010). Security and freedom after September 11. Public Integrity, 13(1), 5–24. http://doi.org/10.2753/PIN1099-9922130101

Breinholt, J. (2004). How about a little perspective: The USA PATRIOT Act and the uses and abuses of history. Texas Review of Law & Politics, 9(1), 17–61. Retrieved September 10, 2014 from http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=16272356&site=ehost-live&scope=site

Carafano, J., Bucci, S., & Zuckerman, J. (2012). Fifty terror plots foiled since 9/11: The homegrown threat and the long war on terrorism (No. 2682). Retrieved May 11, 2015 from http://www.heritage.org/research/reports/2012/04/fifty-terror-plots-foiled-since-9-11-the-homegrown-threat-and-the-long-war-on-terrorism

Center For Democracy and Technology. (2013). NSA spying under Section 215 of the PATRIOT Act: Illegal, overbroad,  and unnecessary. Retrieved May 11, 2015 from https://www.cdt.org/files/pdfs/Analysis-Section-215-Patriot-Act.pdf

Clarke, D. A. (2013, September). Making U.S. security and privacy rights compatible (Thesis). Monterey California. Naval Postgraduate School. Retrieved October 17, 2014 from https://calhoun.nps.edu/handle/10945/37603

The Heritage Foundation. (2004). The Patriot Act reader: Understanding the law’s role in the Global War on Terrorism. Retrieved February 14, 2015 from http://www.heritage.org/research/reports/2004/09/the-patriot-act-reader

Kravets, D. (2013, September 5). Patriot Act author says NSA is abusing spy law. Wired Magazine. Retrieved May 11, 2015 from http://www.wired.com/2013/09/nsa-abusing-patriot-act/

Sales, N. A. (2010). Mending walls: Information sharing after the USA PATRIOT Act. Texas Law Review, 88(7), 1795–1854. Retrieved September 28. 2014 from http://search.proquest.com.southuniversity.libproxy.edmc.edu/pqcentral/docview/722437517/1D2F2179446344F0PQ/31?accountid=87314

Sales, N. A. (2014, May 13). Do we still need the Patriot Act? The New York Times. Retrieved May 11, 2015 from http://www.nytimes.com/roomfordebate/2011/09/07/do-we-still-need-the-patriot-act/the-patriot-act-is-a-vital-weapon-in-fighting-terrorism

Seamon, R. H., & Gardner, W. D. (2005). The Patriot Act and the wall between foreign intelligence and law enforcement. Harvard Journal of Law & Public Policy, 28(2), 319–463. Retrieved October 9, 2014 from http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=16901261&site=ehost-live&scope=site

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I think that essentially that it does not, although it has been "misunderstood" by certain agencies such as the NSA to justify the violation of civil rights. Then again, it becomes an issues of WHO we are spying on: do we want NSA looking at the type of porn we are viewing at the web, or do we want them looking at known terrorists and their communications networks?  I vote for  them looking at the terrorists.

My understanding of utilitarianism was that the overall good has to be balanced by the severity of the harm caused to all the individuals ; "the hedonistic calculus requires consideration of the number of people affected by an act, the seriousness of the effect, and comparision of the long term and short term consequences of the act" (Durchin, 2015, para. 14).

So, by limiting civil rights violations to the individuals that are likely to be enemies of society, we minimize the number of people affect by the government's actions and we limit the negative consequences of the government's actions ( while also potentially limiting the suspected terrorists actions to cause negative consequences).

The hedonistic calculus changes when the government uses a shotgun-effect "bulk collection" model;  the number of people affected is maximized in relation to the preventive consequences; in addition, we add a new negative consequence, the loss of trust in the government by the governed.

So we would use utilitarian theory to show a greater benefit from selectively violating civil rights in the case of an individual terror suspect, while using utilitarian theory to shower a greater harm from violating civil rights using "bulk collection" methods.

Durchin, S. (2015, January 13). “All that is necessary for evil to triumph is for good men to do nothing” . Grad School Fool. Retrieved May 13, 2015 from
http://gradschoolfool.blogspot.com/2015/01/all-that-is-necessary-for-evil-to.html

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A decapitation strategy aimed at the leadership and support personnel (facilitators, propagandists, recruiters, etc) of the terrorist organizations.

A clear definition of law to the point of WHO can be considered a terrorist, and HOW terror suspects can be legally treated.

When possible, the capture of and enhanced interrogation of terror suspects.

Retribution against state entities supporting terror organizations.

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There is a mechanism for discretion in the FISA courts.  One of the legal and moral quandaries we run into is that we have traditionally required a foreign source/origination of subversion or terror before we are allowed to act in full;  we need to better define our legal boundaries to include native threats, but we have to be careful that we don't use this mechanism to silence purely political opposition. As an example, in the 60's the COINTELPRO (FBI) programs targeted violent subversive groups including SDS while CHAOS (Army & CIA) targeted everyone opposing the Vietnam War.  You can point to excesses in COINTELPRO, and while some are on the line, the target of the programs was still violent anti-American groups; on the other hand, CHAOS was inherently excessive because it used agencies forbidden to perform the missions they did...the point of CHAOS was allegedly to silence political speech  (I haven't started an in-depth study of CHAOS yet).

Balancing civil rights and collective security has always been a controversial subject.  American society has a history of cyclic overreaction towards both extremes of the issue.

In the 50's the FBI was pretty free to operate against subversives, in terms of aggressive operations and in surveillance.  Over the course of the 60's, the national mood started changing.  By the 1970's, when the public was made aware of the debatable excesses and the actual excesses of COINTELPRO, and the extreme excesses of CHAOS; this caused a backlash against the intelligence services and severe restrictions on their ability to operate. Not much happened in the 80's and 90's that wasn't able to be handled (but not much happened at all, comparatively to other time periods). 

9/11 pushed the pendulum back towards allowing the intelligence services some leeway.  The NSA spying scandal demonstrates it doesn't take too long for that pendulum to swing all the way!  Hopefully, we as a society don't overreact to that situation and hobble our spies again.

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